EXHIBIT 3.1
================================================================================
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
as Depositor
WILMINGTON TRUST COMPANY,
as Owner Trustee
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity, but solely in its
capacity as Securities Administrator,
as Certificate Registrar and Certificate Paying Agent
---------------------------------------
AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of February 28, 2005
---------------------------------------
Trust Certificates,
Series 2005-2
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE I
Definitions...........................................................................................1
Section 1.01 Definitions.....................................................................1
Section 1.02 Other Definitional Provisions...................................................1
ARTICLE II
Organization..........................................................................................3
Section 2.01 Name............................................................................3
Section 2.02 Office..........................................................................3
Section 2.03 Purposes and Powers.............................................................3
Section 2.04 Appointment of Owner Trustee....................................................4
Section 2.05 Initial Capital Contribution of Owner Trust Estate..............................4
Section 2.06 Declaration of Trust............................................................4
Section 2.07 Liability of the Holders of the Certificates....................................4
Section 2.08 Title to Trust Property.........................................................5
Section 2.09 Situs of Trust..................................................................5
Section 2.10 Representations and Warranties of the Depositor.................................5
Section 2.11 Investment Company..............................................................6
ARTICLE III
Conveyance of the Grantor Trust Certificate...........................................................7
Section 3.01 Conveyance of the Grantor Trust Certificate.....................................7
Section 3.02 The Certificates................................................................7
Section 3.03 Authentication of the Owner Trust Certificates..................................7
Section 3.04 Registration of and Limitations on Transfer and Exchange of Certificates........8
Section 3.05 Mutilated, Destroyed, Lost or Stolen Certificates..............................10
Section 3.06 Persons Deemed Certificateholders..............................................10
Section 3.07 Access to List of Certificateholders' Names and Addresses......................11
Section 3.08 Maintenance of Office or Agency................................................11
Section 3.09 Certificate Paying Agent.......................................................11
ARTICLE IV
Authority and Duties of Owner Trustee................................................................13
Section 4.01 General Authority..............................................................13
Section 4.02 General Duties.................................................................13
Section 4.03 Action upon Instruction........................................................13
Section 4.04 No Duties Except as Specified under Specified Documents or in
Instructions...................................................................14
Section 4.05 Restrictions...................................................................14
Section 4.06 Prior Notice to Certificateholders with Respect to Certain Matters.............14
Section 4.07 Action by Certificateholders with Respect to Certain Matters...................15
Section 4.08 Action by Certificateholders with Respect to Bankruptcy........................15
Section 4.09 Restrictions on Certificateholders' Power......................................15
Section 4.10 Majority Control...............................................................15
Section 4.11 Optional Redemption............................................................16
-i-
TABLE OF CONTENTS
PAGE
----
ARTICLE V
Application of Trust Funds...........................................................................17
Section 5.01 Distributions..................................................................17
Section 5.02 Method of Payment..............................................................17
Section 5.03 Tax Returns....................................................................17
Section 5.04 Statements to Certificateholders...............................................18
ARTICLE VI
Concerning the Owner Trustee.........................................................................19
Section 6.01 Acceptance of Trusts and Duties................................................19
Section 6.02 Furnishing of Documents........................................................20
Section 6.03 Representations and Warranties.................................................20
Section 6.04 Reliance; Advice of Counsel....................................................21
Section 6.05 Not Acting in Individual Capacity..............................................21
Section 6.06 Owner Trustee Not Liable for Certificates or Related Documents.................21
Section 6.07 Owner Trustee May Own Certificates and Notes...................................22
Section 6.08 Payments from Owner Trust Estate...............................................22
Section 6.09 Doing Business in Other Jurisdictions..........................................22
Section 6.10 Liability of Certificate Registrar and Certificate Paying Agent................22
ARTICLE VII
Compensation of Owner Trustee........................................................................23
Section 7.01 Owner Trustee's Fees and Expenses..............................................23
Section 7.02 Indemnification................................................................23
ARTICLE VIII
Termination of Trust Agreement.......................................................................25
Section 8.01 Termination of Trust Agreement.................................................25
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees...............................................27
Section 9.01 Eligibility Requirements for Owner Trustee.....................................27
Section 9.02 Replacement of Owner Trustee...................................................27
Section 9.03 Successor Owner Trustee........................................................27
Section 9.04 Merger or Consolidation of Owner Trustee.......................................28
Section 9.05 Appointment of Co-Trustee or Separate Trustee..................................28
ARTICLE X
Miscellaneous........................................................................................30
Section 10.01 Amendments.....................................................................30
Section 10.02 No Legal Title to Owner Trust Estate...........................................31
Section 10.03 Limitations on Rights of Others................................................31
Section 10.04 Notices........................................................................32
Section 10.05 Severability...................................................................32
Section 10.06 Separate Counterparts..........................................................32
Section 10.07 Successors and Assigns.........................................................32
Section 10.08 No Petition....................................................................32
-ii-
TABLE OF CONTENTS
PAGE
----
Section 10.09 No Recourse....................................................................33
Section 10.10 Headings.......................................................................33
Section 10.11 GOVERNING LAW..................................................................33
Section 10.12 Integration....................................................................33
Section 10.13 Obligations....................................................................33
EXHIBITS
Exhibit A - Form of Certificate ....................................................................A-1
Exhibit B - Certificate of Trust of Bear Xxxxxxx ARM Trust 2005-2 ..................................B-1
Exhibit C - Form of Rule 144A Investment Representation ............................................C-1
Exhibit D - Form of Certificate of Non-Foreign Status ..............................................D-1
Exhibit E - Form of Investment Letter ..............................................................E-1
Exhibit F - Form of Transferor Certificate .........................................................F-1
Exhibit G - Form of ERISA Letter ...................................................................G-1
Exhibit H - Form of Transferee Certificate .........................................................H-1
Exhibit I - Form of Lender Transferor Certificate ..................................................I-1
-iii-
This Amended and Restated Trust Agreement, dated as of February 28,
2005 (as amended from time to time, this "Trust Agreement"), among Structured
Asset Mortgage Investments II Inc., a Delaware corporation, as depositor (the
"Depositor"), Wilmington Trust Company, a Delaware banking corporation, as owner
trustee (the "Owner Trustee") and Xxxxx Fargo Bank, National Association, not
individually but acting solely as Securities Administrator, as certificate
registrar (the "Certificate Registrar") and as certificate paying agent (in such
capacity, the "Certificate Paying Agent").
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the
Depositor and the Owner Trustee agree as follows:
WHEREAS, the Depositor and the Owner Trustee have previously entered
into the Trust Agreement dated as of February 24, 2005 (the "Trust Agreement").
WHEREAS, the parties hereto desire to amend the terms of and restate
the Trust Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Owner Trustee and the Securities Administrator, solely for
purposes of its agreement to serve as Certificate Registrar and Certificate
Paying Agent, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. For all purposes of this Trust Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in Appendix A to the Indenture, dated February 28, 2005,
among Bear Xxxxxxx ARM Trust 2005-2, as Issuer, U.S. Bank National Association,
as Indenture Trustee, and Xxxxx Fargo Bank, National Association, as Securities
Administrator, which is incorporated by reference herein. All other capitalized
terms used herein shall have the meanings specified herein.
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Trust Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Trust Agreement or in any such certificate or other document,
and accounting terms partly defined in this Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this Trust
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained in this Trust Agreement or in any such certificate or
other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Trust Agreement shall refer to this Trust Agreement as
a whole and not to any particular provision of this Trust Agreement; Article,
Section and Exhibit references contained in this Trust Agreement are references
to Articles, Sections and Exhibits in or to this Trust Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(d) The definitions contained in this Trust Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
2
ARTICLE II
ORGANIZATION
Section 2.01 NAME. The trust created hereby (the "Trust") shall be
known as "Bear Xxxxxxx ARM Trust 2005-2", in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued.
Section 2.02 OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the Owner Trustee may designate by written notice to the Certificateholders
and the Depositor.
Section 2.03 PURPOSES AND POWERS. The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Trust Agreement and to sell the Notes and the
Certificates;
(ii) to pay the organizational, start-up and transactional
expenses of the Trust;
(iii) to purchase the Grantor Trust Certificate and to pay the
organizational, start-up and transactional expenses of the Trust;
(iv) to assign, grant, transfer, pledge and convey the Grantor
Trust Certificate pursuant to the Indenture;
(v) to terminate the Grantor Trust Agreement and to assign,
grant, transfer, pledge and convey the Mortgage Loans in connection with any
such termination,
(vi) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vii) if directed by holders of Certificates representing more
than 50% of the beneficial interests in the Trust, sell the Owner Trust Estate
subsequent to the discharge of the Indenture, all for the benefit of the holders
of the Certificates;
(viii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(ix) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the Certificateholders
and the Noteholders.
3
(x) The Trust is hereby authorized to engage in the foregoing
activities. The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Trust Agreement or the Basic Documents.
Section 2.04 APPOINTMENT OF OWNER TRUSTEE. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.05 INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Owner Trustee also
acknowledges on behalf of the Issuer, the receipt in trust of the Grantor Trust
Certificate assigned to the Trust, which shall constitute the Owner Trust
Estate.
Section 2.06 DECLARATION OF TRUST. The Owner Trustee hereby declares
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a "statutory trust"
under the Statutory Trust Statute and that this Trust Agreement constitute the
governing instrument of such statutory trust. It is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, (A) the Trust shall be treated as a QRS (as defined below), as of the
Closing Date and, for so long as the Class A-1 Notes and Class A-2 Notes, and
any Class A-3 Notes, Class A-4 Notes or Subordinate Notes with respect to which
a "will be debt" opinion has been rendered by nationally recognized tax counsel
are outstanding, and thereafter, for so long as 100% of the Certificates and
Class A-3 Notes, Class A-4 Notes and Subordinate Notes (other than any Class A-3
Notes, Class A-4 Notes or Subordinate Notes with respect to which a "will be
debt" opinion has been rendered by nationally recognized tax counsel and
furnished to the Securities Administrator) are held by a real estate investment
trust within the meaning of Section 856(a) of the Code ("REIT"), directly or
indirectly through one or more qualified REIT subsidiaries within the meaning of
Section 856(i) of the Code ("QRSs") of such REIT or one or more entities
disregarded as entities separate from such REIT or such QRSs, and (B) the Class
A-1 and Class A-2 Notes shall be debt, and the provisions of this Agreement
shall be interpreted to further this intention. Except as otherwise provided in
this Trust Agreement, the rights of the Certificateholders will be those of
equity owners of the Trust. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth herein and in the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust.
Section 2.07 LIABILITY OF THE HOLDERS OF THE CERTIFICATES. The Holders
of the Certificates shall be jointly and severally liable directly to and shall
indemnify any injured party for all losses, claims, damages, liabilities and
expenses of the Trust and the Owner Trustee (including Expenses, to the extent
not paid out of the Owner Trust Estate) to the extent that the Holders of the
Certificates would be liable if the Trust were a corporation, and the Holders of
the Certificates were common stockholders in the corporation, under Delaware
corporate law;
4
provided, however, that the Holders of the Certificates shall not be liable for
payments required to be made on the Notes or the Certificates, or for any losses
incurred by a Certificateholder in the capacity of an investor in the
Certificates or a Noteholder in the capacity of an investor in the Notes. The
Holders of the Certificates shall be liable for and shall promptly pay any
entity level taxes imposed on the Trust. In addition, any third party creditors
of the Trust (other than in connection with the obligations described in the
second preceding sentence for which the Holders of the Certificates shall not be
liable) shall be deemed third party beneficiaries of this paragraph. The
obligations of the Holders of the Certificates under this paragraph shall be
evidenced by the Certificates.
Section 2.08 TITLE TO TRUST PROPERTY. Legal title to the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
Section 2.09 SITUS OF TRUST. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware. The Trust shall
not have any employees in any state other than Delaware; provided, however, that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware or taking actions outside the
State of Delaware in order to comply with Section 2.03. Payments will be
received by the Trust only in Delaware, Maryland, Minnesota or New York, and
payments will be made by the Trust only from Delaware, Maryland, Minnesota or
New York. The only office of the Trust maintained by the Owner Trustee will be
at the Corporate Trust Office in Delaware or California.
Section 2.10 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted.
(ii) The Depositor is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of its property
or the conduct of its business shall require such qualifications and in which
the failure to so qualify would have a material adverse effect on the business,
properties, assets or condition (financial or other) of the Depositor.
(iii) The Depositor has the power and authority to execute and
deliver this Trust Agreement and to carry out its terms; the Depositor has full
power and authority to convey and assign the property to be conveyed and
assigned to and deposited with the Trust as part of the Owner Trust Estate and
the Depositor has duly authorized such conveyance and assignment and deposit to
the Trust by all necessary corporate action; and the execution, delivery and
performance of this Trust Agreement have been duly authorized by the Depositor
by all necessary corporate action.
5
(iv) The consummation of the transactions contemplated by this
Trust Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the articles of
incorporation or by-laws of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the Depositor
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor or
its properties.
(v) The Trust is not required to register as an investment
company under the Investment Company Act and is not under the control of a
Person required to so register.
Section 2.11 INVESTMENT COMPANY. Neither the Depositor nor any holder
of a Certificate shall take any action which would cause the Trust to become an
"investment company" which would be required to register under the Investment
Company Act.
6
ARTICLE III
CONVEYANCE OF THE GRANTOR TRUST CERTIFICATE
Section 3.01 CONVEYANCE OF THE GRANTOR TRUST CERTIFICATE. The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, convey, sell and assign to the Trust, on behalf of the Holders of the
Notes and the Owner Trust Certificate, without recourse, all its right, title
and interest in and to the Grantor Trust Certificate.
The Depositor intends that the transaction set forth herein be a sale
by the Depositor to the Trust of all of its right, title and interest in and to
the Grantor Trust Certificate. In the event that the transaction set forth
herein is not deemed to be a sale, the Depositor hereby grants to the Trust a
security interest in all of its right, title and interest in, to and under the
Owner Trust Estate, all distributions thereon and all proceeds thereof; and this
Owner Trust Agreement shall constitute a security agreement under applicable
law.
For income tax purposes the Depositor hereto intends that the
transactions set forth herein shall not be a taxable event.
Section 3.02 THE CERTIFICATES. The Certificates shall be issued in the
form of one or more Certificates, each representing not less than a 10%
Certificate Percentage Interest. The Certificates shall be executed on behalf of
the Trust by manual or facsimile signature of an authorized officer of the Owner
Trustee and authenticated in the manner provided in Section 3.03. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be validly issued and entitled to the benefit of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. A Person shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such Person's acceptance of a Certificate duly
registered in such Person's name, pursuant to Section 3.04.
A transferee of a Certificate shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to and upon satisfaction of
the conditions set forth in Section 3.04.
Section 3.03 AUTHENTICATION OF THE OWNER TRUST CERTIFICATES.
Concurrently with the acquisition of the Grantor Trust Certificate by the Trust,
the Owner Trustee or the Certificate Registrar shall cause the Certificate in an
initial aggregate Certificate Percentage Interest of 100.00% to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in the authorized
denomination. The Certificate shall not entitle its holder to any benefit under
this Owner Trust Agreement or be valid for any purpose unless there shall appear
on the Certificates a certificate of authentication substantially in the form
set forth in Exhibit A, executed by the Owner Trustee or the Certificate
7
Registrar, by manual signature; such authentication shall constitute conclusive
evidence that the Certificate shall have been duly authenticated and delivered
hereunder. The Certificates shall be dated the date of its authentication.
Section 3.04 REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE
OF CERTIFICATES. The Certificate Registrar shall keep or cause to be kept, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
If the Certificate Registrar resigns or is removed, the Owner Trustee shall
appoint a successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below with respect
to the Certificate, upon surrender for registration of transfer of any
Certificate at the office or agency maintained pursuant to Section 3.08, the
Owner Trustee or the Certificate Registrar shall execute, authenticate and
deliver in the name of the designated transferee or transferees, one or more new
Certificates in authorized denominations of a like aggregate amount dated the
date of authentication by the Owner Trustee or the Certificate Registrar. At the
option of a Holder, Certificates may be exchanged for other Certificates of
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.08.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Certificate Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
No Person shall become a Certificateholder until it shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form W-9
and the Certificate of Non-Foreign Status set forth in Exhibit D hereto.
No transfer, sale, pledge or other disposition of a Certificate shall
be made unless such transfer, sale, pledge or other disposition is exempt from
the registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) an investment
letter in substantially the form attached hereto as Exhibit C (or in such form
and substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator, the Seller, the Servicer or the Depositor and which investment
letter states that, among other things, such transferee (a) is a "qualified
institutional buyer" as defined under Rule 144A, acting for its own account or
the accounts of other "qualified institutional
8
buyers" as defined under Rule 144A, and (b) is aware that the proposed
transferor intends to rely on the exemption from registration requirements under
the Securities Act of 1933, as amended, provided by Rule 144A or (ii) (a) a
written Opinion of Counsel acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and laws,
which Opinion of Counsel shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator, the Seller, the Servicer or the Depositor and (b) the transferee
executes a representation letter, substantially in the form of Exhibit E to the
Agreement, and transferor executes a representation letter, substantially in the
form of Exhibit F hereto, each acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor certifying the facts
surrounding such transfer, which representation letters shall not be an expense
of the Trust, the Owner Trustee, the Certificate Registrar, the Master Servicer,
the Securities Administrator, the Seller, the Servicer or the Depositor and (B)
the Certificate of Non-Foreign Status (in substantially the form attached hereto
as Exhibit D) acceptable to and in form and substance reasonably satisfactory to
the Certificate Registrar and the Depositor, which certificate shall not be an
expense of the Trust, the Owner Trustee, the Certificate Registrar or the
Depositor. No certification will be required in connection with the initial
transfer of any such Certificate by the Issuer to the Depositor and by the
Depositor to one of its Affiliates. The Holder of a Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trust, the
Owner Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator, the Seller, the Servicer and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of Certificates or any interest therein shall be made to
any Person unless the Depositor, the Owner Trustee and the Certificate Registrar
are provided with an Opinion of Counsel which establishes to the satisfaction of
the Depositor, the Owner Trustee, the Certificate Registrar, the Seller, the
Servicer and the Master Servicer that the purchase of Certificates is
permissible under applicable law, will not constitute or result in any
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Depositor, the Owner Trustee, the Certificate Registrar, the
Securities Administrator, the Seller, the Servicer or the Master Servicer to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Owner
Trustee, the Certificate Registrar, the Securities Administrator, the Seller,
the Servicer or the Master Servicer. In lieu of such Opinion of Counsel, a
Person acquiring such Certificates may provide a certification in the form of
Exhibit G to this Agreement, which the Depositor, the Owner Trustee, the
Certificate Registrar, the Securities Administrator, the Seller, the Servicer
and the Master Servicer may rely upon without further inquiry or investigation.
Neither an Opinion of Counsel nor a certification will be required in connection
with the initial transfer of any such Certificate from the Issuer to the
Depositor, or by the Depositor to an Affiliate of the Depositor (in which case,
the Depositor and such Affiliate, as applicable, shall be deemed to have
represented that such party is not a Plan or a Person investing Plan Assets of
any Plan).
No transfer, sale, pledge or other disposition of a Certificate or any
interest therein shall be made, and the Certificate Registrar shall refuse to
register any such transfer, sale, pledge or other disposition, so long as the
Class A-1 Notes and Class A-2 Notes, and any Class A-3 Notes,
9
Class A-4 Notes or Subordinate Notes with respect to which a "will be debt"
opinion has been rendered by nationally recognized tax counsel are outstanding
unless (A) the transferee shall have delivered to the Certificate Registrar, the
Owner Trustee, the Securities Administrator and the Indenture Trustee a
certificate substantially in the form attached hereto as Exhibit H certifying
that (i) it is a real estate investment trust ("REIT") or a qualified REIT
subsidiary ("QRS") within the meaning of Section 856(a) or Section 856(i) of the
Code or an entity disregarded as an entity separate from a REIT or a QRS and
(ii) following the transfer, 100% of the Certificates and Class A-3 Notes, Class
A-4 Notes and Subordinate Notes (other than any Class A-3 Notes, Class A-4 Notes
or Subordinate Notes with respect to which a "will be debt" opinion has been
rendered by nationally recognized tax counsel and furnished to the Securities
Administrator) will be owned by a REIT, directly or indirectly through one or
more qualified QRSs of such REIT or one or more entities disregarded as entities
separate from such REIT or such QRSs and (B) the proposed transferor delivers to
the Owner Trustee, the Certificate Registrar, the Securities Administrator and
the Indenture Trustee an Opinion of Counsel, rendered by a law firm generally
recognized to be qualified to opine concerning the tax aspects of asset
securitization, to the effect that, following such transfer, the Trust will
continue to be treated for federal income tax purposes as a QRS; provided that,
notwithstanding the foregoing, (x) any Certificates may be pledged to secure
indebtedness and may be the subject of repurchase agreements treated as secured
indebtedness for federal income tax purposes, and (y) any Certificates may be
transferred by the related lender under any such related loan agreement or
repurchase agreement upon a default under any such indebtedness, in which case
the transferor shall deliver to the Certificate Registrar, the Securities
Administrator, the Owner Trustee and the Indenture Trustee a certificate
substantially in the form attached hereto as Exhibit I certifying to such
effect. Notwithstanding the foregoing, the provisions of this paragraph shall
not apply to the initial transfer of the Certificates to the Depositor or any
Affiliate thereof.
Section 3.05 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice to the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a bona fide purchaser, the Owner Trustee shall execute on
behalf of the Trust and the Owner Trustee or the Certificate Registrar, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under this
Section 3.05, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any expenses of the Owner Trustee or the
Certificate Registrar (including fees and expenses of counsel) and any tax or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section 3.05 shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 3.06 PERSONS DEEMED CERTIFICATEHOLDERS. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar or any Certificate Paying Agent may treat the Person
in whose name any Certificate is registered in the
10
Certificate Register as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 5.02 and for all other purposes
whatsoever, and none of the Trust, the Owner Trustee, the Certificate Registrar
or any Certificate Paying Agent shall be bound by any notice to the contrary.
Section 3.07 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
The Certificate Registrar shall furnish or cause to be furnished to the
Depositor, the Certificate Paying Agent or the Owner Trustee, within 15 days
after receipt by the Certificate Registrar of a written request therefor from
the Depositor, the Certificate Paying Agent or the Owner Trustee, a list, in
such form as the Depositor, the Certificate Paying Agent or the Owner Trustee,
as the case may be, may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. Each Holder, by receiving
and holding a Certificate, shall be deemed to have agreed not to hold any of the
Trust, the Depositor, the Certificate Paying Agent, the Certificate Registrar or
the Owner Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 3.08 MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee on
behalf of the Trust, shall maintain an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be delivered. The Owner Trustee
initially designates the Corporate Trust Office of the Securities Administrator
as its office for purposes of delivery of notices. The Owner Trustee shall give
prompt written notice to the Depositor, the Certificate Paying Agent, the
Certificate Registrar and the Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
Section 3.09 CERTIFICATE PAYING AGENT. (a) The Certificate Paying Agent
shall make distributions to Certificateholders from the Certificate Distribution
Account on behalf of the Trust in accordance with the provisions of the
Certificates and Section 5.01 hereof from payments remitted to the Certificate
Paying Agent by the Securities Administrator pursuant to Section 3.05 of the
Indenture. The Trust hereby appoints the Securities Administrator as Certificate
Paying Agent and the Securities Administrator hereby accepts such appointment
and further agrees that it will be bound by the provisions of this Trust
Agreement relating to the Certificate Paying Agent and shall:
(i) hold all sums held by it for the payment of amounts due
with respect to the Certificates in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust
of which a Responsible Officer of the Certificate Paying Agent has actual
knowledge in the making of any payment required to be made with respect to the
Certificates;
(iii) at any time during the continuance of any such default,
upon the written request of the Owner Trustee forthwith pay to the Owner Trustee
on behalf of the Trust all sums so held in Trust by such Certificate Paying
Agent;
11
(iv) not resign from its position as Certificate Paying Agent
except that it shall immediately resign as Certificate Paying Agent and
forthwith pay to the Owner Trustee on behalf of the Trust all sums held by it in
trust for the payment of Certificates if at any time it ceases to meet the
standards under this Section 3.09 required to be met by the Certificate Paying
Agent at the time of its appointment;
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Certificates of any
applicable withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith; and
(vi) not institute bankruptcy proceedings against the Issuer
in connection with this Trust Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying
Agent if it determines in its sole discretion that the Certificate Paying Agent
shall have failed to perform its obligations under this Trust Agreement in any
material respect. In the event that Xxxxx Fargo Bank, National Association shall
no longer be the Securities Administrator and the Certificate Paying Agent under
this Trust Agreement and Paying Agent under the Indenture, the Owner Trustee
shall appoint a successor to act as Certificate Paying Agent (which shall be a
bank or trust company) and which shall also be the successor Paying Agent under
the Indenture. The Owner Trustee shall cause such successor Certificate Paying
Agent or any additional Certificate Paying Agent appointed by the Owner Trustee
to execute and deliver to the Owner Trustee an instrument to the effect set
forth in Section 3.09(a) as it relates to the Certificate Paying Agent. The
Certificate Paying Agent shall return all unclaimed funds to the Trust and upon
removal of a Certificate Paying Agent such Certificate Paying Agent shall also
return all funds in its possession to the Trust. The provisions of Sections
6.01, 6.04, 6.05, 6.06, 6.07, 6.08 and 7.01 shall apply to the Certificate
Paying Agent to the same extent applicable to the Owner Trustee except where the
context requires otherwise. Any reference in this Agreement to the Certificate
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
(c) The Certificate Paying Agent shall establish and maintain with
itself a trust account (the "Certificate Distribution Account") in which the
Certificate Paying Agent shall deposit, on the same day as it is received from
the Securities Administrator, each remittance received by the Certificate Paying
Agent with respect to payments made pursuant to the Indenture. The Certificate
Paying Agent shall make all distributions to Certificates, from moneys on
deposit in the Certificate Distribution Account, in accordance with Section 5.01
hereof. The funds in the Certificate Distribution Account shall be held
uninvested.
12
ARTICLE IV
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 4.01 GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment or other agreement or instrument described herein, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, except
as otherwise provided in this Trust Agreement, to take all actions required of
the Trust pursuant to the Basic Documents.
Section 4.02 GENERAL DUTIES. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Trust Agreement and the Basic Documents to which the Trust is
a party and to administer the Trust in the interest of the Certificateholders,
subject to the Basic Documents and in accordance with the provisions of this
Trust Agreement.
Section 4.03 ACTION UPON INSTRUCTION. (a) Subject to Article IV and in
accordance with the terms of the Basic Documents, the Certificateholders may by
written instruction direct the Owner Trustee in the management of the Trust.
Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is required to decide between
alternative courses of action permitted or required by the terms of this Trust
Agreement or under any Basic Document, or in the event that the Owner Trustee is
unsure as to the application of any provision of this Trust Agreement or any
Basic Document or any such provision is ambiguous as to its application, or is,
or appears to be, in conflict with any other applicable provision, or in the
event that this Trust Agreement permits any determination by the Owner Trustee
or is silent or is incomplete as to the course of action that the Owner Trustee
is required to take with respect to a particular set of facts, the Owner Trustee
shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction as to the course
of action to be adopted, and to the extent the Owner Trustee acts in good faith
in accordance with any written instruction of the Certificateholders, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within 10 days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement or the Basic Documents, as it shall deem
to be in the best interests of the
13
Certificateholders, and the Owner Trustee shall have no liability to any Person
for such action or inaction.
Section 4.04 NO DUTIES EXCEPT AS SPECIFIED UNDER SPECIFIED DOCUMENTS OR
IN INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Trust Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 4.03; and no implied duties or obligations
shall be read into this Trust Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at anytime or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Trust Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the Owner
Trust Estate.
Section 4.05 RESTRICTIONS. (a) The Owner Trustee or the Depositor (or
an Affiliate thereof) shall not take any action (x) that is inconsistent with
the purposes of the Trust set forth in Section 2.03, (y) that, to the actual
knowledge of the Owner Trustee based on an Opinion of Counsel rendered by a law
firm generally recognized to be qualified to opine concerning the tax aspects of
asset securitization, would result in the Trust becoming taxable as a
corporation for federal income tax purposes or failing to maintain its status as
a QRS (as defined above) or (z) would result in the amendment or modification of
the Basic Documents or this Trust Agreement. The Certificateholders shall not
direct the Owner Trustee to take action that would violate the provisions of
this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's
properties or assets, including those included in the Owner Trust Estate, to any
person unless (a) it shall have received an Opinion of Counsel rendered by a law
firm generally recognized to be qualified to opine concerning the tax aspects of
asset securitization to the effect that such transaction will not have any
material adverse tax consequence to the Trust or any Certificateholder and (b)
such conveyance or transfer shall not violate the provisions of Section 3.16(b)
of the Indenture.
Section 4.06 PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims
or lawsuits brought in connection with the collection of cash distributions due
and owing under the Grantor
14
Trust Certificate) and the compromise of any action, claim or lawsuit brought by
or against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of cash distributions due and owing under the Grantor
Trust Certificate);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Statutory
Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
and
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust Agreement
of a successor Certificate Registrar or Certificate Paying Agent or the consent
to the assignment by the Note Registrar, Paying Agent, Indenture Trustee,
Certificate Registrar or Certificate Paying Agent of its obligations under the
Indenture or this Trust Agreement, as applicable.
Section 4.07 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders to, except as expressly provided in the Basic
Documents, sell the Mortgage Loans after the termination of the Indenture. The
Owner Trustee shall take the actions referred to in the preceding sentence only
upon written instructions signed by the Certificateholders.
Section 4.08 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the consent of the Noteholders and the Owner Trustee and
the delivery to the Owner Trustee by each such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that the
Trust is insolvent. This paragraph shall survive for one year following
termination of this Trust Agreement.
Section 4.09 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Owner Trustee to take or to refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Trust Agreement or any of the Basic
Documents or would be contrary to Section 2.03, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
Section 4.10 MAJORITY CONTROL. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Trust Agreement
may be taken by the Holders of Certificates evidencing not less than a majority
Percentage Interest of the Certificates. Except as expressly provided herein,
any written notice of the Certificateholders delivered pursuant to this Trust
Agreement shall be effective if signed by Holders of Certificates evidencing not
less than a majority Percentage Interest of the Certificates at the time of the
delivery of such notice.
15
Section 4.11 OPTIONAL REDEMPTION. Upon receipt of written instructions
provided to the Owner Trustee by the Majority Certificateholder, the Owner
Trustee shall cause the Issuer to redeem the Notes in accordance with Section
8.06 of the Indenture and shall provide all necessary notices on behalf of the
Issuer to effect the foregoing, provided that such Holder shall deposit with the
Securities Administrator an amount equal to the aggregate redemption price
specified under Section 8.06 of the Indenture. The Owner Trustee shall not have
the power to exercise the right of the Issuer to redeem the Notes pursuant to
Section 8.06 of the Indenture, except as provided above.
16
ARTICLE V
APPLICATION OF TRUST FUNDS
Section 5.01 DISTRIBUTIONS. (a) On each Payment Date, the Certificate
Paying Agent shall in accordance with the directions of the Securities
Administrator given pursuant to the Indenture distribute to the
Certificateholders, on a pro rata basis based on the Certificate Percentage
Interests thereof, all funds on deposit in the Certificate Distribution Account
and available therefor (as provided in Section 3.05 of the Indenture) for such
Payment Date as reduced by any amount owing to the Owner Trustee hereunder and
any Expenses of the Trust remaining unpaid.
(b) In the event that any withholding tax is imposed on the
distributions (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in accordance
with this Section 5.01. The Certificate Paying Agent is hereby authorized and
directed to retain or cause to be retained from amounts otherwise distributable
to the Certificateholders sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Certificate Paying Agent and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Certificate Paying Agent may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Noteholders.
Section 5.02 METHOD OF PAYMENT. Subject to Section 8.01(c),
distributions required to be made to Certificateholders on any Payment Date as
provided in Section 5.01 shall be made to each Certificateholder of record on
the preceding Record Date by wire transfer, in immediately available funds, to
the account of such Holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Payment Date or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
Section 5.03 TAX RETURNS. The Securities Administrator shall (a)
maintain (or cause to be maintained) the books of the Trust on a calendar year
basis using the accrual method of accounting, (b) deliver (or cause to be
delivered) to each Certificateholder as may be required by the Code and
applicable Treasury regulations, such information as may be required to enable
each Certificateholder to prepare its federal and state income tax returns, (c)
prepare and file or cause to be prepared and filed such tax returns relating to
the Trust as may be required by the Code and applicable Treasury regulations
(making such elections as may from time to time be required or appropriate under
any applicable state or federal statutes, rules or regulations) and (d)
17
collect or cause to be collected any withholding tax as described in and in
accordance with Section 5.01 of this Trust Agreement with respect to income or
distributions to Certificateholders and prepare or cause to be prepared the
appropriate forms relating thereto; provided, however, that the Securities
Administrator shall not be required to (x) prepare and file corporation tax
returns on behalf of the Trust, (y) calculate and/or report any "excess
inclusions" with respect to the Certificates, or (z) compute the Issuer's gross
income; and provided further that the Securities Administrator shall be
required to prepare and file partnership tax returns or any other tax returns on
behalf of the Issuer or do any additional tax work caused by any change in the
tax treatment of the Notes or Trust from the treatment contemplated hereunder,
if the Securities Administrator receives (i) an Opinion of Counsel
reasonably satisfactory to it (which shall not be at the Securities
Administrator's expense, but shall be at the expense of the Depositor or other
party furnishing such opinion) as to the necessity of such filings or work, and
(ii) reasonable additional compensation for the preparation and filing of such
additional returns or any such additional tax work. The Owner Trustee hereby
grants permission to the Securities Administrator to sign, to the extent
permitted by law, all tax and information returns prepared by the Securities
Administrator pursuant to this Section 5.03 at the request of the Securities
Administrator, and in doing so shall rely entirely upon, and shall have no
liability for information or calculations provided by, the Securities
Administrator.
Section 5.04 STATEMENTS TO CERTIFICATEHOLDERS. On each Payment Date,
the Securities Administrator shall make available to each Certificateholder the
statement or statements provided to the Owner Trustee by the Securities
Administrator pursuant to Section 7.03 of the Indenture with respect to such
Payment Date.
18
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01 ACCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Trust Agreement. The
Owner Trustee and the Certificate Paying Agent also agree to disburse all moneys
actually received by each of them constituting part of the Owner Trust Estate
upon the terms of the Basic Documents and this Trust Agreement. The Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct,
gross negligence or bad faith or grossly negligent failure to act or (ii) in the
case of the inaccuracy of any representation or warranty contained in Section
6.03 expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Certificateholders permitted under this Trust Agreement;
(b) No provision of this Trust Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights, duties or powers
hereunder or under any Basic Document if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(c) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(d) The Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Trust Agreement or for the due execution hereof
by the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, the Notes, the Certificates, other than
the certificate of authentication on the Certificates, if executed by the Owner
Trustee and the Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein or expressly agreed to in the Basic Documents;
(e) The execution, delivery, authentication and performance by it of
this Trust Agreement will not require the authorization, consent or approval of,
the giving of notice to, the filing or registration with, or the taking of any
other action with respect to, any governmental authority or agency;
(f) The Owner Trustee shall not be liable for the default or misconduct
of the Depositor, Indenture Trustee, Certificate Registrar or the Master
Servicer under any of the Basic Documents or otherwise and the Owner Trustee
shall have no obligation or liability to perform
19
the obligations of the Trust under this Trust Agreement or the Basic Documents
that are required to be performed by the Indenture Trustee under the Indenture
or the Seller under the Mortgage Loan Purchase Agreement.
(g) The Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it or duties imposed by this Trust Agreement, or
to institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any Basic Document, at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Trust Agreement or in any
Basic Document shall not be construed as a duty, and the Owner Trustee shall not
be answerable for other than its gross negligence or willful misconduct in the
performance of any such act.
Section 6.02 FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish
to the Securityholders promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Trust under the Basic Documents.
Section 6.03 REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Trust Agreement, and this Trust Agreement
will be executed and delivered by one of its officers who is duly authorized to
execute and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or bylaws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound;
(d) This Trust Agreement assuming due authorization, execution and
delivery by the Owner Trustee and the Depositor, constitutes a valid, legal and
binding obligation of the Owner Trustee, enforceable against it in accordance
with the terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law;
(e) The Owner Trustee is not in default with respect to any order or
decree of any court or any order, regulation or demand of any Federal, state,
municipal or governmental
20
agency, which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of the Owner
Trustee or its properties or might have consequences that would materially
adversely affect its performance hereunder; and
(f) No litigation is pending or, to the best of the Owner Trustee's
knowledge, threatened against the Owner Trustee which would prohibit its
entering into this Trust Agreement or performing its obligations under this
Trust Agreement.
Section 6.04 RELIANCE; ADVICE OF COUNSEL. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, note, or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter
and such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the
performance of its duties and obligations under this Trust Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) if such persons have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it. The
Owner Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this Trust Agreement or
any Basic Document.
Section 6.05 NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VI, in accepting the trusts hereby created Wilmington Trust Company
acts solely as Owner Trustee hereunder and not in its individual capacity, and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Trust Agreement or any Basic Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 6.06 OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR RELATED
DOCUMENTS. The recitals contained herein and in the Certificates (other than the
signatures of the Owner Trustee on the Certificates) shall be taken as the
statements of the Depositor, and the Owner Trustee assumes no responsibility for
the correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Trust Agreement, of any Basic Document or of the
Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents, or of MERS or the
MERS(R) System. The Owner Trustee shall at no time have any responsibility or
liability with respect to the sufficiency of the Owner
21
Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Trust Agreement or the Noteholders under the
Indenture, including compliance by the Depositor or the Seller with any warranty
or representation made under any Basic Document or in any related document or
the accuracy of any such warranty or representation, or any action of the
Certificate Paying Agent, the Certificate Registrar, the Indenture Trustee or
the Securities Administrator taken in the name of the Owner Trustee.
Section 6.07 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The Owner
Trustee in its individual or any other capacity may, subject to Section 3.04,
become the owner or pledgee of Certificates or Notes and may deal with the
Depositor, the Seller, the Certificate Paying Agent, the Certificate Registrar
and the Indenture Trustee in transactions with the same rights as it would have
if it were not Owner Trustee.
Section 6.08 PAYMENTS FROM OWNER TRUST ESTATE. All payments to be made
by the Owner Trustee under this Trust Agreement or any of the Basic Documents to
which the Owner Trustee is a party shall be made only from the income and
proceeds of the Owner Trust Estate or from other amounts required to be provided
by the Certificateholders and only to the extent that the Owner Trust shall have
received income or proceeds from the Owner Trust Estate or the
Certificateholders to make such payments in accordance with the terms hereof.
Wilmington Trust Company, in its individual capacity, shall not be liable for
any amounts payable under this Trust Agreement or any of the Basic Documents to
which the Owner Trustee is a party.
Section 6.09 DOING BUSINESS IN OTHER JURISDICTIONS. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company nor
the Owner Trustee shall be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will, even after the
appointment of a co-trustee or separate trustee in accordance with Section 9.05
hereof, (i) require the consent or approval or authorization or order of or the
giving of notice to, or the registration with or the taking of any other action
in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware; (ii) result in any fee, tax or
other governmental charge under the laws of the State of Delaware becoming
payable by Wilmington Trust Company; or (iii) subject Wilmington Trust Company
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust Company or the Owner Trustee, as the case may
be, contemplated hereby.
Section 6.10 LIABILITY OF CERTIFICATE REGISTRAR AND CERTIFICATE PAYING
AGENT. All provisions affording protection or rights to or limiting the
liability of the Owner Trustee, including the provisions of this Agreement
permitting the Owner Trustee to resign, merge or consolidate, shall inure as
well to the Certificate Registrar and Certificate Paying Agent.
22
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01 OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon by the Owner Trustee and the Depositor. In the event that
the Depositor fails to pay such fees on any Payment Date, the Owner Trustee
shall be entitled to such fee from funds on deposit in the Payment Account prior
to any distributions to the Noteholders on such Payment Date. Additionally, the
Owner Trustee shall be reimbursed from amounts on deposit in the Payment
Account, in accordance with the Indenture for its reasonable expenses hereunder
and under the Basic Documents, including the reasonable compensation, expenses
and disbursements of such agents, representatives, experts and counsel as the
Owner Trustee may reasonably employ in connection with the exercise and
performance of its rights and its duties hereunder and under the Basic
Documents.
Section 7.02 INDEMNIFICATION. The Depositor shall indemnify, defend and
hold harmless the Owner Trustee and its respective successors, assigns, agents
and servants (collectively, the "Indemnified Parties") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against any Indemnified Party in any way relating to or arising out of
this Trust Agreement, the Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of the Owner
Trustee, solely in its capacity as Certificate Paying Agent, hereunder,
provided, that:
(i) the Depositor shall not be liable for or required to
indemnify an Indemnified Party, as applicable, from and against Expenses arising
or resulting from such Indemnified Party's own willful misconduct, gross
negligence or bad faith or, as to the Owner Trustee, as a result of any
inaccuracy of a representation or warranty of the Owner Trustee contained in
Section 6.03 expressly made by the Owner Trustee;
(ii) with respect to any such claim, the Indemnified Party
shall have given the Depositor written notice thereof promptly after the
Indemnified Party shall have actual knowledge thereof; provided, however, that
failure to give such notice shall not affect the indemnification of the
Indemnified Party except to the extent the Depositor is materially prejudiced by
such failure;
(iii) while maintaining control over its own defense, the
Depositor shall consult with the Indemnified Party in preparing such defense;
and
(iv) notwithstanding anything in this Agreement to the
contrary, the Depositor shall not be liable for settlement of any claim by an
Indemnified Party entered into without the prior consent of the Depositor which
consent shall not be unreasonably withheld.
23
The indemnities contained in this Section shall survive the resignation
or termination of the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent or the termination of this Trust Agreement. In
addition, upon written notice to the Owner Trustee, the Certificate Registrar or
the Certificate Paying Agent and with the consent of the Owner Trustee, the
Certificate Registrar or the Certificate Paying Agent which consent shall not be
unreasonably withheld, the Depositor has the right to assume the defense of any
claim, action or proceeding against the Owner Trustee, the Certificate Registrar
or the Certificate Paying Agent.
The Seller agrees to indemnify the Owner Trustee for any loss,
liability or expense for which the Depositor is required to indemnify the Owner
Trustee pursuant to Section 7.02 of the Trust Agreement, other than (x) any loss
liability or expense required to be covered by the Master Servicer pursuant to
this Section 5.03 (y) and any loss, liability or expense already paid by the
Depositor in accordance with Section 7.02 of this Agreement.
24
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01 TERMINATION OF TRUST AGREEMENT. (a) This Trust Agreement
(other than Article VII) and the Trust shall terminate and be of no further
force or effect upon the earlier of (i) the final distribution of all moneys or
other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture and this Trust Agreement and (ii) the distribution of all
of the assets of the Owner Trust Estate, in accordance with written instructions
provided to the Owner Trustee by the Majority Certificateholder, following the
optional redemption of the Notes effected by the Majority Certificateholder
pursuant to Section 8.06 of the Indenture; provided in each case that all
amounts owing to the Noteholders to the extent payable from the Owner Trust
Estate or proceeds thereof have been paid in full and that all obligations under
the Indenture have been discharged. The bankruptcy, liquidation, dissolution,
death or incapacity of any Certificateholder shall not (x) operate to terminate
this Trust Agreement or the Trust or (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or the Owner Trust Estate or (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date
upon which Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and cancellation,
shall be given by the Certificate Paying Agent by letter to Certificateholders
mailed within five Business Days of receipt of notice of the final payment on
the Notes from the Securities Administrator, stating (i) the Payment Date upon
or with respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Certificate
Paying Agent therein designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Certificate Payment Agent therein specified.
The Certificate Paying Agent shall give such notice to the Owner Trustee and the
Certificate Registrar at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Certificate Paying
Agent shall cause to be distributed to Certificateholders amounts distributable
on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above mentioned written notice, the Certificate Paying Agent shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.03 of the Indenture, all the
Certificates shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to +
25
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Certificate Distribution Account after exhaustion of such
remedies shall be distributed by the Certificate Paying Agent to the Depositor.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(c) of the Statutory Trust Statute.
26
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Statutory Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by Moody's and/or
at least BBB- by Standard and Poor's or is otherwise acceptable to the Rating
Agencies. If such corporation shall publish reports of condition at least
annually pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section 9.01, the Owner Trustee shall resign immediately
in the manner and with the effect specified in Section 9.02.
Section 9.02 REPLACEMENT OF OWNER TRUSTEE. The Owner Trustee may at any
time resign and be discharged from the trusts hereby created by giving 30 days
prior written notice thereof to the Depositor. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Owner Trustee, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and to the successor Owner Trustee. If
no successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.01 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Depositor shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
Section 9.03 SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Indenture Trustee and to its predecessor Owner Trustee an instrument accepting
such appointment under this Trust
27
Agreement, and thereupon the resignation or removal of the predecessor Owner
Trustee shall become effective, and such successor Owner Trustee, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under this Trust Agreement,
with like effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Trust Agreement; and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee all
such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Owner Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies.
Section 9.04 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 9.05 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Trust Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or as
separate trustee or trustees, of all or any part of the Owner Trust Estate, and
to vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee
28
is not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Owner Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Trust Agreement;
and
(c) The Owner Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Trust
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Trust Agreement, specifically including
every provision of this Trust Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Owner Trustee. Each such
instrument shall be filed with the Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Trust Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
29
ARTICLE X
MISCELLANEOUS
Section 10.01 AMENDMENTS. (a) This Trust Agreement may be amended from
time to time by the parties hereto as specified in this Section, provided that
any amendment, except as provided in subparagraph (e) below, be accompanied by
an Opinion of Counsel addressed to the Owner Trustee, the Certificate Registrar
and the Certificate Paying Agent and obtained by the Depositor to the effect
that such amendment (i) complies with the provisions of this Section and (ii)
would not cause the Trust to be subject to an entity level tax for federal
income tax purposes.
(b) If the purpose of the amendment (as detailed therein) is to correct
any mistake, eliminate any inconsistency, cure any ambiguity or deal with any
matter not covered (i.e. to give effect to the intent of the parties and, if
applicable, to the expectations of the Holders), it shall not be necessary to
obtain the consent of any Noteholders or Certificateholders, but the Owner
Trustee, the Certificate Registrar and the Certificate Paying Agent shall be
furnished with (A) a letter from each of the Rating Agencies that the amendment
will not result in the downgrading or withdrawal of the rating then assigned to
any Note or the rating then assigned to any Note or (B) an Opinion of Counsel
obtained by the Depositor to the effect that such action will not adversely
affect in any material respect the interests of any Noteholders or
Certificateholders.
(c) If the purpose of the amendment is to prevent the imposition of any
federal or state taxes at any time that any Security is outstanding, it shall
not be necessary to obtain the consent of any Noteholders or Certificateholders,
but the Owner Trustee, the Certificate Registrar and the Certificate Paying
Agent shall be furnished with an Opinion of Counsel obtained by the Depositor
that such amendment is necessary or helpful to prevent the imposition of such
taxes and is not materially adverse to any Noteholders or Certificateholders.
(d) If the purpose of the amendment is to add or eliminate or change
any provision of the Trust Agreement other than as contemplated in (b) and (c)
above, the amendment shall require (A) an Opinion of Counsel obtained by the
Depositor to the effect that such action will not adversely affect in any
material respect the interests of any Noteholders or Certificateholders and (B)
either (a) a letter from each of the Rating Agencies that the amendment will not
result in the downgrading or withdrawal of the rating then assigned to any Note
or (b) the consent of Holders of Certificates evidencing a majority Percentage
Interest of the Certificates and the consent of Noteholders representing at
least 51% of the Note Principal Balance of the Notes; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received that are required to be distributed on any Certificate
without the consent of the related Certificateholder, (ii) reduce the aforesaid
percentage of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates then
outstanding, or (iii) change the permitted activities of the Trust as set forth
herein.
(e) If the purpose of the amendment is to provide for the holding of
any of the Certificates in book-entry form, it shall require the consent of
Holders of all such Certificates
30
then outstanding; provided, that the Opinion of Counsel specified in
subparagraph (a) above shall not be required.
(f) Promptly after the execution of any such amendment or consent, the
Depositor shall furnish written notification of the substance of such amendment
or consent to each Certificateholder, the Indenture Trustee and the Rating
Agencies. It shall not be necessary for the consent of Certificateholders,
Noteholders or the Indenture Trustee pursuant to this Section 10.01 to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders provided
for in this Trust Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(g) In connection with the execution of any amendment to any agreement
to which the Trust is a party, other than this Trust Agreement, the Owner
Trustee, the Certificate Registrar and the Certificate Paying Agent shall be
entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the documents subject
to such amendment and that all conditions precedent in the Basic Documents for
the execution and delivery thereof by the Trust or the Owner Trustee, as the
case may be, have been satisfied.
(h) No amendment or agreement affecting the rights or duties of the
Certificate Registrar or the Certificate Paying Agent may be entered into
without the consent of the affected party.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State of the State of Delaware.
Section 10.02 NO LEGAL TITLE TO OWNER TRUST ESTATE. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate solely by virtue of their status as a Certificateholder. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided beneficial interest therein only in accordance with Articles V
and VIII. No transfer, by operation of law or otherwise, of any right, title or
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Trust Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
Section 10.03 LIMITATIONS ON RIGHTS OF OTHERS. Except for Section 2.07,
the provisions of this Trust Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders and, to the extent expressly
provided herein, the Indenture Trustee and the Noteholders, and nothing in this
Trust Agreement (other than Section 2.07), whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Trust Agreement
or any covenants, conditions or provisions contained herein.
31
Section 10.04 NOTICES. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt, to the Owner Trustee at: Wilmington Trust Company,
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000;
Attention: Corporate Trust Administration; to the Depositor at: Structured Asset
Mortgage Investments II. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel; to the Securities Administrator, the Certificate
Registrar and the Certificate Paying Agent at its Corporate Trust Offices; to
Standard & Poor's, a Division of The XxXxxx-Xxxx Companies, Inc. at: 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; to Xxxxx'x Investors Service, Inc., 00 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, as to each party, at such other
address as shall be designated by such party in a written notice to each other
party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Trust Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust
shall also be delivered to the Depositor.
Section 10.05 SEVERABILITY. Any provision of this Trust Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 10.06 SEPARATE COUNTERPARTS. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 10.07 SUCCESSORS AND ASSIGNS. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Depositor, the Owner Trustee and its successors, and
each Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
Section 10.08 NO PETITION. The Owner Trustee, by entering into this
Trust Agreement and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations to the
Certificates, the Notes, this Trust Agreement or any of the Basic Documents.
This Section shall survive for one year following the termination of this Trust
Agreement.
32
Section 10.09 NO RECOURSE. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Seller, the Owner Trustee, the Indenture
Trustee, the Certificate Registrar, the Certificate Paying Agent or any
Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Trust
Agreement, the Certificates or the Basic Documents.
Section 10.10 HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11 GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12 INTEGRATION. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
Section 10.13 OBLIGATIONS. The execution and delivery of this Trust
Agreement by Xxxxx Fargo Bank, National Association is not in its individual
capacity but solely in its capacity as Securities Administrator, and solely for
purposes of its appointment and agreement to serve as Certificate Registrar and
Certificate Paying Agent. The Securities Administrator shall have no duties or
obligations under this Agreement except for those duties expressly set forth in
this Agreement as duties of the Certificate Registrar or Certificate Paying
Agent, and no implied duties shall be read into this Agreement on the part of
the Securities Administrator (or Certificate Paying Agent or Certificate
Registrar). In entering into this Agreement and with respect to all matters
arising under this Agreement, the Securities Administrator shall enjoy and be
protected by all of the rights, powers, benefits, immunities, indemnities and
other protections granted to it under Article VI of the Indenture, whether
acting in its capacity as Certificate Registrar or as Certificate Paying Agent.
33
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.,
as Depositor
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
acting not individually but solely as
Securities Administrator, Certificate
Registrar and Certificate Paying Agent
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
EXHIBIT A
Form of Certificate
[Face]
THIS CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE
INDENTURE.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN OPINION OF COUNSEL AS DESCRIBED IN THE TRUST
AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS
TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S. LAW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.04 OF THE TRUST AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OR (II) IF THIS CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PLAN SUBJECT TO ERISA, OR SECTION 4975 OF THE CODE
(OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY
SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE
OF CERTIFICATES IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN ANY PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE AND
WILL NOT SUBJECT THE DEPOSITOR, THE SELLER, THE SERVICER, THE OWNER TRUSTEE, THE
CERTIFICATE REGISTRAR OR THE MASTER SERVICER TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE)
IN ADDITION TO THOSE
A-1
UNDERTAKEN IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN
EXPENSE OF THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SECURITIES ADMINISTRATOR OR THE MASTER SERVICER.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE, SO LONG AS THE CLASS A-1
NOTES AND CLASS A-2 NOTES, AND ANY CLASS A-3 NOTES, CLASS A-4 NOTES, CLASS B-1
NOTES, CLASS B-2 NOTES, CLASS B-3 NOTES, CLASS B-4 NOTES, CLASS B-5 NOTES, CLASS
B-6 NOTES OR CLASS X-1 NOTES WITH RESPECT TO WHICH A "WILL BE DEBT" OPINION HAS
BEEN RENDERED BY NATIONALLY RECOGNIZED TAX COUNSEL, ARE OUTSTANDING, UNLESS (A)
THE TRANSFEREE SHALL HAVE DELIVERED TO THE OWNER TRUSTEE, THE CERTIFICATE
REGISTRAR, THE SECURITIES ADMINISTRATOR AND THE INDENTURE TRUSTEE A CERTIFICATE
CERTIFYING THAT (1) IT IS A REAL INVESTMENT TRUST ("REIT") OR A QUALIFIED REIT
SUBSIDIARY ("QRS") WITHIN THE MEANING OF SECTION 856(A) OR SECTION 856(I) OF THE
CODE OR AN ENTITY DISREGARDED AS AN ENTITY SEPARATE FROM A REIT OR A QRS AND (2)
FOLLOWING THE TRANSFER, 100% OF THE CERTIFICATES AND CLASS A-3 NOTES, CLASS A-4
NOTES, CLASS B-1 NOTES, CLASS B-2 NOTES, CLASS B-3 NOTES, CLASS B-4 NOTES, CLASS
B-5 NOTES, CLASS B-6 NOTES AND CLASS X-1 NOTES (OTHER THAN ANY CLASS A-3 NOTES,
CLASS A-4 NOTES, CLASS B-1 NOTES, CLASS B-2 NOTES, CLASS B-3 NOTES, CLASS B-4
NOTES, CLASS B-5 NOTES, CLASS B-6 NOTES OR CLASS X-1 NOTES WITH RESPECT TO WHICH
A "WILL BE DEBT" OPINION HAS BEEN RENDERED BY NATIONALLY RECOGNIZED TAX COUNSEL
AND FURNISHED TO THE SECURITIES ADMINISTRATOR) WILL BE OWNED BY A REIT, DIRECTLY
OR INDIRECTLY THROUGH ONE OR MORE QRSS OF SUCH REIT OR ONE OR MORE ENTITIES
DISREGARDED AS ENTITIES SEPARATE FROM SUCH REIT OR SUCH QRSS AND (B) THE
PROPOSED TRANSFEROR SHALL HAVE DELIVERED TO THE OWNER TRUSTEE, THE CERTIFICATE
REGISTRAR, THE SECURITIES ADMINISTRATOR AND THE INDENTURE TRUSTEE AN OPINION OF
COUNSEL, RENDERED BY A FIRM GENERALLY RECOGNIZED TO BE QUALIFIED TO OPINE
CONCERNING THE TAX ASPECTS OF ASSET SECURITIZATION, TO THE EFFECT THAT,
FOLLOWING SUCH TRANSFER, THE TRUST WILL CONTINUE TO BE TREATED FOR FEDERAL
INCOME TAX PURPOSES AS A QRS; PROVIDED THAT (X) THIS CERTIFICATE MAY BE PLEDGED
TO SECURE INDEBTEDNESS AND MAY BE THE SUBJECT OF REPURCHASE AGREEMENTS TREATED
AS SECURED INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES, AND (Y) THIS NOTE MAY
BE TRANSFERRED BY A RELATED LENDER UNDER ANY SUCH RELATED LOAN AGREEMENT OR
REPURCHASE AGREEMENT UPON A DEFAULT UNDER ANY SUCH INDEBTEDNESS, IN WHICH CASE
THE TRANSFEROR SHALL DELIVER TO THE NOTE REGISTRAR, THE SECURITIES
ADMINISTRATOR, THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE A CERTIFICATE
CERTIFYING TO SUCH EFFECT.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE CERTIFICATE REGISTRAR, THE
A-2
CERTIFICATE PAYING AGENT, THE DEPOSITOR, THE MASTER SERVICER, THE INDENTURE
TRUSTEE, OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES, EXCEPT AS
EXPRESSLY PROVIDED IN THE TRUST AGREEMENT OR THE BASIC DOCUMENTS.
A-3
Certificate No.
Cut-off Date: February 1, 2005 Percentage Interest: ___%
Date of Amended and Restated Trust First Payment Date:
Agreement: March 25, 2005
February 28, 2005
Master Servicer:
Xxxxx Fargo Bank, National Association
BEAR XXXXXXX ARM TRUST SERIES 2005-2
Evidencing a fractional undivided equity interest in the Owner Trust
Estate, the property of which consists primarily of the Mortgage Loans in Bear
Xxxxxxx ARM Trust 2005-2 (the "Trust"), a Delaware statutory trust formed by
STRUCTURED ASSET MORTGAGE INVESTMENTS II. INC., as depositor, pursuant to the
Trust Agreement referred to below.
This certifies that ____________________is the registered owner of the
Percentage Interest represented hereby.
The Trust was created pursuant to a Short Form Trust Agreement, dated
as of February __, 2005, between the Depositor and Wilmington Trust Company, as
owner trustee (the "Owner Trustee", which term includes any successor entity
under the Trust Agreement) (the "Short Form Trust Agreement") as amended and
restated by the Amended and Restated Trust Agreement, dated as of February 28,
2005 (as amended and supplemented from time to time, the "Trust Agreement"),
among the Depositor, the Owner Trustee and Xxxxx Fargo Bank, National
Association, in its capacity as Securities Administrator, as certificate
registrar and certificate paying agent, a summary of certain of the pertinent
provisions of which is set forth hereinafter. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Trust Agreement,
to which Trust Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This Certificate is one of a duly authorized issue of Trust
Certificates, Series 2005-2 (herein called the "Certificates") issued under the
Trust Agreement to which reference is hereby made for a statement of the
respective rights thereunder of the Depositor, the Owner Trustee and the Holders
of the Certificates and the terms upon which the Certificates are executed and
delivered. All terms used in this Certificate which are defined in the Trust
Agreement shall have the meanings assigned to them in the Trust Agreement. The
Owner Trust Estate consists of the Grantor Trust Certificate in Bear Xxxxxxx ARM
Trust 2005-2. The rights of the Holders of the Certificates are subordinated to
the rights of the Holders of the Notes, as set forth in the Indenture.
There will be distributed on the 25th day of each month or, if such
25th day is not a Business Day, the next Business Day (each, a "Payment Date"),
commencing on March 25, 2005, to the Person in whose name this Certificate is
registered at the close of business on the
A-4
last Business Day of the month immediately preceding such Payment Date (the
"Record Date"), such Certificateholder's Percentage Interest in the amount to be
distributed to Certificateholders on such Payment Date.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Payment Account that
have been released from the Lien of the Indenture for payment hereunder and that
neither the Owner Trustee in its individual capacity nor the Depositor is
personally liable to the Certificateholders for any amount payable under this
Certificate or the Trust Agreement or, except as expressly provided in the Trust
Agreement, subject to any liability under the Trust Agreement.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Indenture, dated as of February
28, 2005, among the Trust, U.S. Bank National Association, as Indenture Trustee
and Xxxxx Fargo Bank, National Association, as Securities Administrator (the
"Indenture").
The Depositor and each Certificateholder, by acceptance of a
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for federal, state and local income tax purposes
as an equity interest in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in any institution against the Depositor or the Trust of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Certificate Paying Agent by wire transfer or check mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Certificate Paying Agent of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose by the Trust, as
provided in Section 3.08 of the Trust Agreement.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
in such notice.
The Mortgage Loans are subject to purchase in whole, but not in part,
by the Majority Certificateholder, on any Payment Date on or after the Payment
Date on which the aggregate Scheduled Principal Balance of the Mortgage Loans as
of the end of the prior Due Period is less than or equal to 10% of the aggregate
Scheduled Principal Balance of the Mortgage Loans as of the Cut-off Date.
A-5
No transfer, sale, pledge or other disposition of a Certificate shall
be made unless such transfer, sale, pledge or other disposition is exempt from
the registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached to the Agreement as Exhibit C (or in
such form and substance reasonably satisfactory to the Certificate Registrar and
the Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Securities Administrator, the Certificate Registrar, the
Master Servicer, the Seller, the Servicer or the Depositor and which investment
letter states that, among other things, such transferee (1) is a "qualified
institutional buyer" as defined under Rule 144A, acting for its own account or
the accounts of other "qualified institutional buyers" as defined under Rule
144A, and (2) is aware that the proposed transferor intends to rely on the
exemption from registration requirements under the Securities Act of 1933, as
amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from said
Act and laws or is being made pursuant to said Act and laws, which Opinion of
Counsel shall not be an expense of the Trust, the Owner Trustee, the Securities
Administrator, the Certificate Registrar, the Master Servicer, the Seller, the
Servicer or the Depositor and (b) the transferee executes a representation
letter, substantially in the form of Exhibit D to the Agreement, and the
transferor executes a representation letter, substantially in the form of
Exhibit F to the Agreement, each acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor certifying the facts
surrounding such transfer, which representation letters shall not be an expense
of the Trust, the Owner Trustee, the Securities Administrator, the Certificate
Registrar, the Master Servicer, the Seller, the Servicer or the Depositor and
(B) the Certificate of Non-Foreign Status (in substantially the form attached to
the Agreement as Exhibit D) acceptable to and in form and substance reasonably
satisfactory to the Certificate Registrar and the Depositor, which certificate
shall not be an expense of the Trust, the Owner Trustee, the Securities
Administrator, the Certificate Registrar, the Seller, the Servicer or the
Depositor. The Holder of a Certificate desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trust, the Owner Trustee, the Indenture
Trustee, the Certificate Paying Agent, the Certificate Registrar, the Master
Servicer, the Seller, the Servicer and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of Certificates or any interest therein shall be made to
any Person unless the Depositor, the Owner Trustee, the Securities
Administrator, the Certificate Registrar, the Seller, the Servicer and the
Master Servicer are provided with an Opinion of Counsel which establishes to the
satisfaction of the Depositor, the Owner Trustee, the Securities Administrator,
the Certificate Registrar, the Seller, the Servicer and the Master Servicer that
the purchase of Certificates is permissible under applicable law, will not
constitute or result in any prohibited transaction under ERISA or Section 4975
of the Code and will not subject the Depositor, the Owner Trustee, the
Securities Administrator, the Certificate Registrar, the Seller, the Servicer or
the Master Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Trust Agreement, which Opinion of Counsel shall not be an
expense of the Depositor, the Owner Trustee, the Securities Administrator, the
Certificate Registrar, the Seller, the Servicer or the Master Servicer.
A-6
In lieu of such Opinion of Counsel, a Person may provide a certification in the
form of Exhibit G to the Agreement, which the Depositor, the Owner Trustee, the
Securities Administrator, the Certificate Registrar, the Seller, the Servicer
and the Master Servicer may rely upon without further inquiry or investigation.
Neither an Opinion of Counsel nor a certification will be required in connection
with the initial transfer of any such Certificate by the Depositor to an
affiliate of the Depositor (in which case, the Depositor or any affiliate
thereof shall have deemed to have represented that such affiliate is not a Plan
or a Person investing Plan Assets of any Plan) and the Owner Trustee shall be
entitled to conclusively rely upon a representation (which, upon the request of
the Owner Trustee, shall be a written representation) from the Depositor of the
status of such transferee as an affiliate of the Depositor.
No transfer, sale, pledge or other disposition of a Certificate or any
interest therein shall be made, and the Certificate Registrar shall refuse to
register any such transfer, sale, pledge or other disposition, so long as the
Class A-1 Notes and Class A-2 Notes, and any Class A-3 Notes, Class A-4 Notes or
Subordinate Notes with respect to which a "will be debt" opinion has been
rendered by nationally recognized tax counsel are outstanding, unless (A) the
transferee shall have delivered to the Certificate Registrar, the Owner Trustee,
the Securities Administrator and the Indenture Trustee a certificate certifying
that (i) it is a real estate investment trust ("REIT") or a qualified REIT
subsidiary ("QRS") within the meaning of Section 856(a) or Section 856(i) of the
Code or an entity disregarded as an entity separate from a REIT or a QRS and
(ii) following the transfer, 100% of the Certificates and Class A-3 Notes, Class
A-4 Notes and Subordinate Notes (other than any Class A-3 Notes, Class A-4 Notes
or Subordinate Notes with respect to which a "will be debt" opinion has been
rendered by nationally recognized tax counsel and furnished to the Securities
Administrator) will be owned by a REIT, directly or indirectly through one or
more qualified QRSs of such REIT or one or more entities disregarded as entities
separate from such REIT or such QRSs and (B) the proposed transferor delivers to
the Owner Trustee, the Certificate Registrar, the Securities Administrator and
the Indenture Trustee an Opinion of Counsel, rendered by a law firm generally
recognized to be qualified to opine concerning the tax aspects of asset
securitization, to the effect that, following such transfer, the Trust will
continue to be treated for federal income tax purposes as a QRS; provided that,
notwithstanding the foregoing, (x) any Certificates may be pledged to secure
indebtedness and may be the subject of repurchase agreements treated as secured
indebtedness for federal income tax purposes, and (y) any Certificates may be
transferred by the related lender under any such related loan agreement or
repurchase agreement upon a default under any such indebtedness, in which case
the transferor shall deliver to the Certificate Registrar, the Securities
Administrator, the Owner Trustee and the Indenture Trustee a certificate
certifying to such effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, or an authenticating
agent by manual signature, this Certificate shall not entitle the Holder hereof
to any benefit under the Trust Agreement or be valid for any purpose.
A-7
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-8
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
BEAR XXXXXXX ARM TRUST SERIES 2005-2
BY: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
Dated: February 28, 2005 By:______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Securities Administrator
By:_______________________________
Authorized Signatory
or _______________________________,
as Authenticating Agent of the Trust
By:_______________________________
Authorized Signatory
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Seller, the Master Servicer, the Servicer, the Securities
Administrator, the Indenture Trustee, the Certificate Paying Agent, the
Certificate Registrar, the Owner Trustee or any Affiliates of any of them and no
recourse may be had against such parties or their assets, except as expressly
set forth or contemplated herein or in the Trust Agreement or the Basic
Documents. In addition, this Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of payment to certain
collections and recoveries with respect to the Mortgage Loans, all as more
specifically set forth herein and in the Trust Agreement. A copy of the Trust
Agreement may be examined by any Certificateholder upon written request during
normal business hours at the principal office of the Depositor and at such other
places, if any, designated by the Depositor.
The Trust Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by an Opinion of Counsel to the Owner
Trustee to the effect that such amendment complies with the provisions of the
Trust Agreement and would not cause the Trust to be subject to an entity level
tax. If the purpose of the amendment is to correct any mistake, eliminate any
inconsistency, cure any ambiguity or deal with any matter not covered, it shall
not be necessary to obtain the consent of any Holder, but the Owner Trustee
shall be furnished with a letter from each of the Rating Agencies that the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Note or the rating then assigned to any Note. If the purpose of
the amendment is to prevent the imposition of any federal or state taxes at any
time that any Security is outstanding, it shall not be necessary to obtain the
consent of any Holder, but the Owner Trustee shall be furnished with an Opinion
of Counsel that such amendment is necessary or helpful to prevent the imposition
of such taxes and is not materially adverse to any Holder. If the purpose of the
amendment is to add or eliminate or change any provision of the Trust Agreement,
other than as specified in the preceding two sentences, the amendment shall
require either (a) a letter from each of the Rating Agencies that the amendment
will not result in the downgrading or withdrawal of the rating then assigned to
any Note or the rating then assigned to any Note or (b) the consent of Holders
of the Certificates evidencing a majority of the Percentage Interests of the
Certificates and the Indenture Trustee; PROVIDED, HOWEVER, that no such
amendment shall (i) reduce in any manner the amount of, or delay the time of,
payments received that are required to be distributed on any Certificate without
the consent of the related Certificateholder, or (ii) reduce the aforesaid
percentage of Certificates the Holders of which are required to consent to any
such amendment without the consent of the Holders of all such Certificates then
outstanding.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Trust, as provided in the Trust Agreement, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is Xxxxx Fargo Bank, National Association.
A-8
Except as provided in the Trust Agreement, the Certificates are
issuable only in a minimum Certificate Percentage Interest of 10%. As provided
in the Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate
Registrar and any agent of the Owner Trustee, the Certificate Paying Agent, or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate as and when provided in accordance
with the terms of the Trust Agreement.
A-9
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
_______________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
_______________________________*/
Signature Guaranteed:
___________________*/
----------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-10
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available funds to
____________________________________________
______________________________________________________________________________
for the account of __________________________________________, account number
_______________________________________________________, or, if mailed by check,
to _________________________________________.
Applicable statements should be mailed to ___________________________.
__________________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
A-11
EXHIBIT B
CERTIFICATE OF TRUST OF
BEAR XXXXXXX ARM TRUST 2005-2
-----------------------------
THIS Certificate of Trust of Bear Xxxxxxx ARM Trust 2005-2 (the
"Trust"), dated February __, 2005, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, to form a
statutory trust under the Delaware Statutory Trust Act (12 DEL. CODE, ss. 3801
ET SEQ.).
1. NAME. The name of the statutory trust formed hereby is Bear Xxxxxxx
ARM Trust 2005-2.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
Wilmington Trust Company,
not in its individual capacity
but solely as owner
trustee under a Trust
Agreement dated as of
February__, 2005
By:
__________________________
Name:
Title:
B-1
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
The undersigned seller, as registered holder (the "Seller"),
intends to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with,
the Owner Trustee, the Certificate Registrar and the Depositor (as defined in
the Amended and Restated Trust Agreement (the "Agreement"), dated as of February
28, 2005, among Structured Asset Mortgage Investments II. Inc., as Depositor,
Wilmington Trust Company, as Owner Trustee, and Xxxxx Fargo Bank, National
Association in its capacity as Securities Administrator, as Certificate
Registrar and Certificate Paying Agent) pursuant to Section 3.04 of the
Agreement and U.S. Bank National Association, as indenture trustee, as follows:
a. The Buyer understands that the Rule 144A Securities have
not been registered under the 1933 Act or the securities laws of any
state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Rule 144A Securities.
C-1
c. The Buyer has been furnished with all information regarding
the Rule 144A Securities that it has requested from the Seller, the
Indenture Trustee, the Owner Trustee or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act, nor
has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term
is defined in Rule 144A under the 1933 Act and has completed either of
the forms of certification to that effect attached hereto as Annex 1 or
Annex 2. The Buyer is aware that the sale to it is being made in
reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities
for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
1933 Act.
3. The Buyer warrants and represents to, and covenants with,
the Seller, the Indenture Trustee, Owner Trustee, the Certificate Registrar,
Master Servicer and the Depositor that either (1) the Buyer is (A) not an
employee benefit plan (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), or a plan (within
the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986
("Code")), which (in either case) is subject to ERISA or Section 4975 of the
Code (both a "Plan"), and (B) is not directly or indirectly purchasing the Rule
144A Securities on behalf of, as investment manager of, as named fiduciary of,
as trustee of, or with "plan assets" of a Plan, or (2) the Buyer understands
that registration of transfer of any Rule 144A Securities to any Plan, or to any
Person acting on behalf of any Plan, will not be made unless such Plan delivers
an opinion of its counsel, addressed and satisfactory to the Certificate
Registrar, the Owner Trustee, the Master Servicer, the Seller, the Servicer and
the Depositor, to the effect that the purchase and holding of the Rule 144A
Securities by, on behalf of or with "plan assets" of any Plan is permissible
under applicable law, would not constitute or result in a prohibited transaction
under ERISA or Section 4975 of the Code, and would not subject the Depositor,
the Owner Trustee, the Securities Administrator, the Certificate Registrar, the
Seller, the Servicer or the Master Servicer to any obligation or liability
(including liabilities under ERISA or Section 4975 of the Code) in addition to
those undertaken in the Agreement, which Opinion of Counsel shall not be an
expense of the
C-2
Depositor, the Owner Trustee, the Securities Administrator, the Certificate
Registrar, the Seller, the Servicer or the Master Servicer.
4. This document may be executed in one or more counterparts
and by the different parties hereto on separate counterparts, each of which,
when so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
__________________________________ _________________________
Print Name of Seller Print Name of Buyer
By:_______________________________ By:______________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No._______________________________ No.______________________
Date:_____________________________ Date:____________________
ANNEX 1 TO EXHIBIT C
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $ 1 in securities (except for the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A) and (ii) the Buyer
satisfies the criteria in the category marked below.
___ CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ BANK. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the
business of which is substantially confined to banking and is
supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
___ SAVINGS AND LOAN. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements.
___ BROKER-DEALER. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State or territory or the District of Columbia.
----------
1 Buyer must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
C-7
___ STATE OR LOCAL PLAN. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality
of the State or its political subdivisions, for the benefit of its
employees.
___ ERISA PLAN. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ INVESTMENT ADVISER. The Buyer is an investment adviser registered under
the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
___ BUSINESS DEVELOPMENT COMPANY. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act
of 1940.
___ TRUST FUND. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established
and maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, but is not a trust fund that includes as participants individual
retirement accounts or H.R. 10 plans.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit Notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
_____ _____ Will the Buyer be purchasing the Rule 144A Securities
Yes No only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the
C-8
account of a third party that at the time is a "qualified institutional buyer"
within the meaning of Rule 144A. In addition, the Buyer agrees that the Buyer
will not purchase securities for a third party unless the Buyer has obtained a
current representation letter from such third party or taken other appropriate
steps contemplated by Rule 144A to conclude that such third party independently
meets the definition of "qualified institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
__________________________
Print Name of Buyer
By:_______________________
Name:
Title:
Date: ____________________
C-9
ANNEX 2 TO EXHIBIT C
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used.
____ The Buyer owned $ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit Notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that
each of the parties to which this certification is made are relying and will
continue to rely on the statements made herein because one or more sales to the
Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer's own account.
C-10
6. The undersigned will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
__________________________
Print Name of Buyer
By:_______________________
Name:
Title:
IF AN ADVISER:
Print Name of Buyer
Date: ____________________
EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered
pursuant to Section 3.04 of the Amended and Restated Trust Agreement, dated as
of February 28, 2005 (the "Trust Agreement"), among Structured Asset Mortgage
Investments II. Inc., as Depositor, Wilmington Trust Company, as Owner Trustee
and Xxxxx Fargo Bank, National Association, in its capacity as Securities
Administrator, as Certificate Registrar and Certificate Paying Agent, in
connection with the acquisition of, transfer to or possession by the
undersigned, whether as beneficial owner for U.S. federal income tax purposes
(the "Beneficial Owner"), or nominee on behalf of the Beneficial Owner, of the
Trust Certificates, Series 2005-2 (the "Certificates"). Capitalized terms used
but not defined in this certificate have the respective meanings given them in
the Trust Agreement.
Each holder must complete Part I and Part II (if the holder is a nominee), and
in all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the certificate an IRS Form W-9
relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do not
apply in respect of the Certificates held by the undersigned, the undersigned
hereby certifies:
Part I. Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is) not a
non-resident alien for purposes of U.S.
federal income taxation;
2. My (The Beneficial Owner's) name and home
address are:
____________________________________
____________________________________
____________________________________; and
3. My (The Beneficial Owner's) U.S. taxpayer
identification number (Social Security
Number) is .
B. Corporate, Partnership or Other Entity as Beneficial
Owner
1. (Name of the Beneficial Owner) is not a
foreign corporation, foreign partnership,
foreign trust or foreign estate (as those
terms are defined in the Code and Treasury
regulations;
D-1
2. The Beneficial Owner's office address and
place of incorporation (if applicable) is ;
and
3. The Beneficial Owner's U.S. employer
identification number is .
Part II. Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this certificate has been made in reliance upon
information contained in:
________ an IRS Form W-9
________ a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that the
form relied upon becomes obsolete, and (ii) in connection with a change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III. Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees
to notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust, and any false
statement contained therein could be punishable by fines, imprisonment or both.
D-2
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete and further declare that I will inform the Trust of any change in the
information provided above, and, if applicable, I further declare that I have
the authority* to sign this document.
________________________
Name
________________________
Title (if applicable)
________________________
Signature and Date
*Note: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
EXHIBIT E
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, National Association, as Securities Administrator and
Certificate Registrar
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: Bear Xxxxxxx ARM Trust 2005-2 Trust Certificates,
SERIES 2005-2 (THE "CERTIFICATES")
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates,
we certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986, as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an Opinion of Counsel satisfactory to
the addressees of this certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in
the Trust Agreement.
E-1
Very truly yours,
[TRANSFEREE]
By:_______________________
Authorized Officer
EXHIBIT F
TRANSFEROR CERTIFICATE
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: PROPOSED TRANSFER OF TRUST CERTIFICATES, BEAR XXXXXXX ARM
TRUST 2005-2
Gentlemen:
This certification is being made by ____________________ (the
"Transferor") in connection with the proposed Transfer to _____________________
(the "Transferee") of a trust certificate (the "Trust Certificate") representing
___% fractional undivided interest in Bear Xxxxxxx ARM Trust 2005-2 (the
"Trust") created pursuant to a Trust Agreement, dated as of February __, 2005
(such agreement, as amended by the Amended and Restated Trust Agreement dated
February 28, 2005, being referred to herein as the "Trust Agreement") among
Structured Asset Mortgage Investments II. Inc (the "Depositor"), Wilmington
Trust Company, as Owner Trustee (the "Owner Trustee") and Xxxxx Fargo Bank,
National Association, in its capacity as Securities Administrator, as
certificate registrar and certificate paying agent (the "Certificate
Registrar"). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Deposit Trust Agreement. The Transferor hereby
certifies, represents and warrants to, and covenants with, the Depositor, the
Owner Trustee and the Certificate Registrar that:
Neither the Transferor nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Trust Certificate, any
interest in any Trust Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Trust Certificate, any interest in any
Trust Certificate or any other similar security from any person in any manner,
(c) has otherwise approached or negotiated with respect to any Trust
Certificate, any interest in any Trust Certificate or any other similar security
with any person in any manner, (d) has made any general solicitation by means of
general advertising or in any other manner, or (e) has taken any other action,
that (as to any of (a) through (e) above) would constitute a distribution of the
Trust Certificates under the Securities Act of 1933 (the "Act"), that would
render the disposition of any Trust Certificate a violation of Section 5 of the
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Transferor will not act in any manner set
forth in the foregoing sentence with respect to any Trust Certificate. The
Transferor has not and will not sell or otherwise transfer any of the Trust
Certificates, except in compliance with the provisions of the Trust Agreement.
F-1
Date:______________________ __________________________
Name of Transferor
__________________________
Signature
__________________________
Name
__________________________
Title
EXHIBIT G
[DATE]
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: Proposed Transfer of Trust Certificates,
BEAR XXXXXXX ARM TRUST 2005-2 (THE "CERTIFICATES")
Gentlemen:
This certification is being made by (the "Transferee") in connection with the
proposed Transfer by (the "Transferor") of a trust certificate (the "Trust
Certificate") representing __% fractional undivided interest in Bear Xxxxxxx ARM
Trust 2005-2 (the "Trust") created pursuant to a Trust Agreement, dated as of
February 24, 2005 (such agreement, as amended by the Amended and Restated Trust
Agreement dated February 28, 2005, being referred to herein as the "Trust
Agreement") among Structured Asset Mortgage Investments II Inc., a Delaware
corporation, as depositor (the "Depositor"), Wilmington Trust Company, a
Delaware banking corporation, as owner trustee (the "Owner Trustee") and Xxxxx
Fargo Bank, National Association, not individually but acting solely as
Securities Administrator, as certificate registrar (the "Certificate Registrar")
and as certificate paying agent (in such capacity, the "Certificate Paying
Agent"). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement. The Transferor hereby
certifies, represents and warrants to, and covenants with, the Company, the
Owner Trustee and the Certificate Registrar that:
(i) either (a) or (b) is satisfied, as marked below:
___ a. The Transferor is not any employee benefit plan subject
to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986 (the "Code"), a Person
acting, directly or indirectly, on behalf of any such plan or any
Person acquiring such Certificates with "plan assets" of a Plan within
the meaning of the Department of Labor regulation promulgated at 29
C.F.R. ss.2510.3-101; or
___ b. The Transferor is an employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the Internal Revenue Code of 1986 (the "Code"), a Person
acting, directly or indirectly, on behalf of any such plan or any
Person acquiring such Certificates with "plan assets" of a Plan within
the meaning of the Department of Labor regulation promulgated at 29
C.F.R. ss.2510.3-101 and will provide the Depositor, the Owner Trustee,
the Securities Administrator, the Certificate Registrar and the Master
Servicer with an Opinion of Counsel, satisfactory to the Depositor, the
Owner Trustee, the Securities
G-1
Administrator, the Certificate Registrar and the Master Servicer, to
the effect that the purchase and holding of a Certificate by or on
behalf of the Transferor is permissible under applicable law, will not
constitute or result in a prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments) and will not subject the Depositor, the Owner
Trustee, the Securities Administrator, the Certificate Registrar, the
Seller, the Servicer or the Master Servicer to any obligation or
liability (including liabilities under ERISA or Section 4975 of the
Code) in addition to those undertaken in the Trust Agreement, which
Opinion of Counsel shall not be an expense of the Depositor, the Owner
Trustee, the Securities Administrator, the Certificate Registrar, the
Seller, the Servicer or the Master Servicer; and
(ii) the Transferor is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections 406
and 407 of ERISA and Section 4975 of the Code and understands that each
of the parties to which this certification is made is relying and will
continue to rely on the statements made in this paragraph.
Very truly yours,
By:_____________________________
Name: __________________________
Title:__________________________
G-2
EXHIBIT H
FORM OF TRANSFEREE CERTIFICATE
------------------------------
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, National Association,
as Securities Administrator and Certificate Registrar
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services
U.S. Bank, National Association, as Indenture Trustee
Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Re: Proposed Transfer of Trust Certificates,
BEAR XXXXXXX ARM TRUST 2005-2 (THE "CERTIFICATES")
Gentlemen:
This certification is being made by ______________ (the "Transferee")
in connection with the proposed Transfer by ___________ of Certificates
representing __% fractional undivided interest in Bear Xxxxxxx ARM Trust 2005-2
created pursuant to a Trust Agreement, dated as of February 24, 2005 (such
agreement, as amended by the Amended and Restated Trust, Agreement dated
February 28, 2005, being referred to herein as the "Trust Agreement") among
Structured Asset Mortgage Investments II Inc., as depositor, Wilmington Trust
Company, as owner trustee (the "Owner Trustee") and Xxxxx Fargo Bank, National
Association, solely in its capacity as securities administrator (the "Securities
Administrator"), certificate registrar (the "Certificate Registrar") and
certificate paying agent. Initially capitalized terms used but not defined
herein have the meanings assigned to them in the Trust Agreement. The Transferee
hereby certifies, represents and warrants to, and covenants with, the Securities
Administrator, the Owner Trustee, the Indenture Trustee and the Certificate
Registrar that:
(a) The Transferee is a REIT or a QRS within the meaning of Section
856(a) or Section 856(i) of the Code or an entity disregarded as an entity
separate from a REIT or a QRS.
(b) Following the Transfer, 100% of the Certificates and Class A-3
Notes, Class A-4 Notes and Subordinate Notes (other than any Class A-3 Notes,
Class A-4 Notes or Subordinate Notes with respect to which a "will be debt"
opinion has been rendered by nationally recognized tax counsel and furnished to
the Securities Administrator) will be owned by a REIT, directly or indirectly
through one or more QRSs of such REIT or one or more entities disregarded as
entities separate from such REIT or such QRSs.
H-1
H-2
Date:
Name of Transferee
Signature
Name
Title
EXHIBIT I
FORM OF TRANSFEROR CERTIFICATE
------------------------------
Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, National Association,
as Securities Administrator and Certificate Registrar
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services
U.S. Bank, National Association, as Indenture Trustee
Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Re: Proposed Transfer of Trust Certificates,
BEAR XXXXXXX ARM TRUST 2005-2 (THE "CERTIFICATES")
Gentlemen:
This certification is being made by ___________ (the "Transferor") in
connection with the proposed pledge or transfer to __________ of Certificates
representing __% fractional undivided interest in Bear Xxxxxxx ARM Trust 2005-2
created pursuant to a Trust Agreement, dated as of February 24, 2005 (such
agreement, as amended by the Amended and Restated Trust Agreement, dated
February 28, 2005, being referred to herein as the "Trust Agreement") among
Structured Asset Mortgage Investments II Inc., as depositor, Wilmington Trust
Company, as owner trustee (the "Owner Trustee") and Xxxxx Fargo Bank, National
Association, solely in its capacity as securities administrator (the "Securities
Administrator"), certificate registrar (the "Certificate Registrar") and
certificate paying agent. Initially capitalized terms used but not defined
herein have the meanings assigned to them in the Trust Agreement. The Transferor
hereby certifies, represents and warrants to, and covenants with, the Securities
Administrator, the Owner Trustee, the Indenture Trustee and the Certificate
Registrar that:
(a) The Certificates are being pledged by the Transferor to secure
indebtedness of [___________] or is the subject of a loan agreement or
repurchase agreement treated as secured indebtedness of [___________] for
federal income tax purposes as permitted under the Trust Agreement; or
(b) The Certificates are being transferred by the related lender under
a loan agreement or repurchase agreement upon a default under any such
indebtedness as permitted under the Trust Agreement.
I-1
Date: __________________________
Name of Transferor
__________________________
Signature
__________________________
Name
__________________________
Title
